Pat's seeks to reclaim towing right

Tuesday

Oct 22, 2013 at 6:00 AMOct 22, 2013 at 6:28 PM

By Steven H. Foskett Jr. , TELEGRAM & GAZSETTE STAFF

WORCESTER — The contract Pat's Towing had with the city amounted to a license that should not have been terminated without due process, a lawyer for the Shrewsbury Street business argued Monday, seeking an injunction in U.S. District Court.

The city's lawyers maintained that the towing agreement was a commercial contract, and there was specific language in it allowing the city to terminate the contract if Pat's did not provide "polite and courteous" service.

Pat's is seeking the injunction, which would allow it to reclaim its exclusive right to tow in its assigned districts until Dec. 31, 2015, as part of a federal lawsuit it filed last month alleging the city breached the towing contract and violated the constitutional rights of its owner, Patsy Santa Maria Sr.

The city terminated the contract with Pat's last month after Patsy Santa Maria Jr., on trial on assault charges, pleaded guilty. The plea ended the trial after five days.

Mr. Santa Maria Sr. was arrested during the trial for allegedly trying to bribe a witness in his son's trial. Mr. Santa Maria Jr. and his girlfriend, a former New England Patriots cheerleader, were later also charged with trying to bribe a witness in the assault case, which stemmed from a 2011 beating of an employee of Curtis Plow at Pat's Service Center on Shrewsbury Street.

The city's announcement that it was severing ties with Pat's included a recommendation from Police Chief Gary J. Gemme that outlined numerous police responses to the business over the years. The chief also said the integrity of investigations could be compromised by allowing a business with an owner who was charged with witness tampering and subornation of perjury to transport vehicles towed to police headquarters for investigatory purposes.

U.S. District Court Judge Timothy S. Hillman asked several questions during the injunction hearing of Robert S. Sinsheimer, who represented Pat's; and David Moore, who represented the city. The judge ultimately took the arguments under advisement.

The bulk of Mr. Sinsheimer's argument was that the towing contract with Pat's was essentially a license, and that Pat's had a constitutional right to due process before the contract was terminated.

Mr. Moore maintained that the agreement was a commercial contract that included clauses that Pat's employees be "polite and courteous" with the public. Those clauses were violated, and the city terminated the contract, Mr. Moore said.

Mr. Sinsheimer argued that Pat's paid for what he described as a license, and performed its duties as outlined in the contract.

"They can't just take it away," Mr. Sinsheimer said.

He said nothing the city has said alleges Pat's employees failed to maintain their professionalism; Judge Hillman interjected and noted the city refers to criminal cases against employees of Pat's. Mr. Sinsheimer said it's easy to throw allegations like that around; the judge responded that it appeared there has been at least one conviction.

Mr. Sinsheimer also called the witness intimidation charges against the Santa Marias "piling on kind of charges," and said that while he is not representing either Santa Maria in their criminal cases, as far as he could tell the charges stemmed from what was essentially "trial prep." He said he was under the impression that those charges would be going away.

Mr. Sinsheimer said the towing business is a tough business that tends to employ tough people, but said 90 percent of the calls to police cited by the city in terminating the contract actually came from Pat's after customers became unhappy. He said his client's business has served the city well, and even described it as a "quasi-arm of police," which prompted Judge Hillman to remark that he would have liked to hear the Police Department's view on that.

Mr. Moore said the city's contract with Pat's included terms that allowed for termination if Pat's failed to comply with the law or did not provide polite and courteous service at all times. He said that Mr. Sinsheimer argued that the towing business is tough, but said there were still too many times where Pat's didn't know how to handle tough situations. The 2011 beating that resulted in serious injuries certainly illustrated that, Mr. Moore argued.

"At what point is it enough?" Mr. Moore asked.

Mr. Moore disagreed that the agreement was a license that entitled Pat's to constitutional protections, but Judge Hillman asked if a hearing would be required if, in fact, the agreement was a license.

"Knee-jerk? No," Mr. Moore said.

He said if it was a license, it was still a license with limitations, and the city would have a right to revoke that license. It's not a civil service or collective bargaining situation, Mr. Moore said.

He also argued against the injunction on the grounds that the harm against Pat's could be remedied with money, and said an injunction would be moot because the city has already given out replacement contracts to cover Pat's former district.

Mr. Sinsheimer said there was not a single incident cited by the city in which Pat's did not give services it paid for the right to provide. He urged the judge to ignore what he described as hearsay related to the criminal cases; those involve individuals. The civil suit involves a corporation.

The judge agreed that a pending criminal case would likely not carry a lot of weight in the civil proceedings, but again returned to Mr. Santa Maria Jr.'s trial.

"But guilty pleas after five days of trial?" Judge Hillman asked. "He pleaded guilty after five days of trial to a fairly serious beating."

Mr. Sinsheimer said not all the details are out there, and at that point, Mr. Santa Maria raised his hand in the back of the courtroom. The judge noticed him, and advised that saying anything would be a bad idea. Mr. Santa Maria conferred with his lawyer for a moment; then Mr. Sinsheimer returned to say that the criminal case involving Mr. Santa Maria's son had nothing to do with city-contracted tows.

After the hearing, Mr. Santa Maria Sr. declined to comment. Mr. Sinsheimer said he felt the judge paid careful attention to his arguments based on Pat's constitutional right to due process, and felt there was a real possibility the judge could grant the injunction.